HomeMy WebLinkAbout2022-09-06 I01 TIC Properties Development AgreementAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: September 6, 2022
AGENDA ITEM:Consideration of approval of a resolution approving and authorizing
execution of a Development Agreement with TIC Properties, LLC
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON:
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: Staff believes the proposed Development Agreement is
consistent with City’s policy for offering incentives under the approved
Incentive Policy. Additionally, the proposed development will expand
resident options and access to healthcare while increasing commercial
growth in Kettlestone and the City of Waukee. Staff would recommend
approval of the development agreement.
RECOMMENDATION: Approve the resolution.
ATTACHMENTS: I. Proposed Resolution
II. Agreement for Private Development
PREPARED BY: Jennifer Brown, Director of Economic Development
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
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RESOLUTION NO. ______
RESOLUTION APPROVING AND AUTHORIZING
EXECUTION OF A DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF WAUKEE AND TIC PROPERTIES,
LLC
WHEREAS, by Resolution No. 19-402, adopted November 4, 2019, the City approved and
adopted Amendment No. 1 to the Waukee Consolidated Urban Renewal Plan (the "Plan" or "Urban
Renewal Plan"), which unified the existing Gateway Economic Development Urban Renewal
Area, Waukee West Urban Renewal Area, and Waukee Central Urban Renewal Area into the
Waukee Consolidated Urban Renewal Area (the "Area" or "Urban Renewal Area") described
therein, which Plan has been subsequently amended several times, most recently by Amendment
No. 5 to the Plan approved by Resolution No. 2021-476 adopted on November 15, 2021, and which
Plan, as amended, is on file in the office of the Recorder of Dallas County; and
WHEREAS, the City has received a proposal from TIC Properties, LLC (the "Developer"),
in the form of a proposed Development Agreement (the "Agreement") by and between the City
and the Developer, pursuant to which, among other things, the Developer would agree to construct
certain Minimum Improvements (as that term is defined in the Agreement) on certain real property
located within the Urban Renewal Area as defined and legally described in the Agreement (the
"Development Property"), which Minimum Improvements include the construction of a new road
anticipated to be dedicated to the City as public infrastructure (the "Public Improvements") and a
60,000 square foot commercial building to be used as a medical center (the "Office Building"),
together with all related site improvements, as outlined in the proposed Agreement; and
WHEREAS, the Agreement further proposes that the City will make up to eight (8)
consecutive annual payments of Economic Development Grants to Developer consisting of 80%
of the Tax Increments collected pursuant to Section 403.19, Code of Iowa, and generated by the
construction of the Office Building on the Development Property; the cumulative total for all such
payments not to exceed the lesser of $1,668,467 or the aggregate amount of the Approved Costs
incurred by Developer in completing the Public Improvements, under the terms and following
satisfaction of the conditions set forth in the Agreement; and
WHEREAS, the Agreement further requires the Developer to cause a minimum number of
employees be created and maintained in the operations on the Development Property following
construction of the medical clinic; and
WHEREAS, Chapters 15A and 403, Code of Iowa, authorize cities to make grants for
economic development in furtherance of the objectives of an urban renewal project and to
appropriate such funds and make such expenditures as may be necessary to carry out the purposes
of said Chapters, and to levy taxes and assessments for such purposes; and
WHEREAS, the Council has determined that the Agreement is in the best interests of the
City and the residents thereof and that the performance by the City of its obligations thereunder is
a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and,
further, that the Agreement and the City's performance thereunder is in furtherance of appropriate
economic development activities and objectives of the City within the meaning of Chapters 15A
and 403, Code of Iowa, taking into account any or all of the factors set forth in Chapter 15A, Code
of Iowa, to wit:
a. Businesses that add diversity to or generate new opportunities for the Iowa
economy should be favored over those that do not.
b. Development policies in the dispensing of the funds should attract, retain, or expand
businesses that produce exports or import substitutes, or which generate tourism-
related activities.
c. Development policies in the dispensing or use of the funds should be targeted
toward businesses that generate public gains and benefits, which gains and benefits
are warranted in comparison to the amount of the funds dispensed.
d. Development policies in dispensing the funds should not be used to attract a
business presently located within the state to relocate to another portion of the state
unless the business is considering in good faith to relocate outside the state or unless
the relocation is related to an expansion which will generate significant new job
creation. Jobs created as a result of other jobs in similar Iowa businesses being
displaced shall not be considered direct jobs for the purpose of dispensing funds;
and
WHEREAS, pursuant to notice published as required by law, this Council has held a public
meeting and hearing upon the proposal to approve and authorize execution of the Agreement and
has considered the extent of objections received from residents or property owners as to said
proposed Agreement; and, accordingly the following action is now considered to be in the best
interests of the City and residents thereof.
NOW THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF
WAUKEE IN THE STATE OF IOWA:
Section 1.That the performance by the City of its obligations under the Agreement,
including but not limited to making of grants to the Developer in connection with the development
of the Development Property under the terms set forth in the Agreement, be and is hereby declared
to be a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law
and, further, that the Agreement and the City's performance thereunder is in furtherance of
appropriate economic development activities and objectives of the City within the meaning of
Chapters 15A and 403, Code of Iowa, taking into account the factors set forth therein.
Section 2.That the form and content of the Agreement, the provisions of which are
incorporated herein by reference, be and the same hereby are in all respects authorized, approved
and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered
and directed to execute, attest, seal and deliver the Agreement for and on behalf of the City in
substantially the form and content now before this meeting, but with such changes, modifications,
additions or deletions therein as shall be approved by such officers, and that from and after the
execution and delivery of the Agreement, the Mayor and the City Clerk are hereby authorized,
empowered and directed to do all such acts and things and to execute all such documents as may
be necessary to carry out and comply with the provisions of the Agreement as executed.
PASSED AND APPROVED this 6th day of September, 2022.
Mayor
ATTEST:
City Clerk
Execution Version
AGREEMENT FOR PRIVATE DEVELOPMENT
by and between
CITY OF WAUKEE, IOWA
AND
TIC PROPERTIES, LLC
_________________, 2022
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AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT (“Agreement”), is made on or as of the
____ day of ___________, 20___, by and between the CITY OF WAUKEE, IOWA, a municipality
(“City”), established pursuant to the Code of Iowa of the State of Iowa and acting under the authorization
of Chapters 15A and 403 of the Code of Iowa, 2021, as amended (“Urban Renewal Act”) and TIC
PROPERTIES, LLC, an Iowa limited liability company having an office for the transaction of business at
5950 University Avenue Suite 321, West Des Moines, 50266 (“Developer”).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has undertaken a
program for the development of an economic development area in the City and , in this connection, is
engaged in carrying out urban renewal project activities in an area known as the Waukee Consolidated
Urban Renewal Area (the "Urban Renewal Area"), which is described in the Urban Renewal Plan
originally approved for such area by Resolution No. 19-402, adopted November 4, 2019, and subsequently
amended; and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been or will be
recorded among the land records in the office of the Recorder of Dallas County, Iowa; and
WHEREAS, Developer is the owner of certain real property located in the Urban Renewal Area,
described as parcels 21-120 and 21-121, said property being more particularly described in Exhibit A
attached hereto and made a part hereof; and
WHEREAS, Lolowau, LLC (“Lolowau”) is the owner of certain real property located in the Urban
Renewal Area, described as Parcel 21-122, said property being more particularly described in Exhibit A
attached hereto and made a part hereof, subject to a certain Declarat ion Regarding Public Street dated
February 21, 2022, and recorded February 22, 2022, in Book 2022, Page 3847, as corrected on February
25, 2022, in Book 2022, Page 4097 (the “Public Street Declaration”); and
WHEREAS, all of the Property described as Parcels 21-120, 21-121, and 21-122, said property
being more particularly described in Exhibit A attached hereto and made a part hereof, is hereinafter
referred to as the “Development Property”; and
WHEREAS, Developer intends to cause certain improvements to b e constructed on the
Development Property (the “Minimum Improvements”), and Developer will thereafter cause the
Minimum Improvements to be operated in accordance with this Agreement, including the employment of
employees therein (which obligations collectively are referred to herein as the “Project”); and
WHEREAS, the City is willing to provide certain incentives to Developer in consideration for
Developer’s obligations all pursuant to the terms and conditions of this Agreement; and
WHEREAS, the City believes that the development of the Development Property pursuant to this
Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City
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and in accord with the public purposes and provisions of the applicable State and local laws and
requirements under which the foregoing project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the promises and the mutual obligations of the parties
hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all
capitalized terms used and not otherwise defined herein shall have the following meanings unless a
different meaning clearly appears from the context:
Agreement means this Agreement for Private Development and all exhibits and appendices hereto,
as the same may be from time to time modified, amended, or supplemented.
Approved Costs means the costs and expenses related to the design and construction of the Public
Improvements, and landscaping, grading, drainage, engineering, plans, and specifications related to the
Public Improvements, together with a construction management fee not to exceed 7% of the other costs,
as more particularly described herein and within the right-of-way to be dedicated to the City.
Assessor means the Dallas County, Iowa Assessor.
Certificate of Completion means a certification in the form of the certificate attached hereto as
Exhibit D and hereby made a part of this Agreement.
City means the City of Waukee, Iowa, or any successor to its functions.
Code means the Code of Iowa, 2021, as amended.
Commencement Date means the date of this Agreement.
Construction Plans means the plans, specifications, drawings, and related documents reflecting the
construction work on the Minimum Improvements to be performed by the Developer on the Development
Property; the Construction Plans shall be as detailed as the plans, specifications, drawings, and related
documents which are submitted to the building inspector of the City as required by applicable City codes.
Developer means TIC Properties, LLC, and its permitted successors and assigns.
Development Property means that portion of the Urban Renewal Area described in Exhibit A. At
such time as the Public Improvements Development Property is conveyed to the City of Waukee, any
references to the Development Property in this Agreement shall exclude the Public Improvements
Development Property.
Economic Development Grants means the payments to be made by the City to Developer under
Article VIII of this Agreement.
Event of Default means any of the events described in Section 10.1 of this Agreement.
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First Mortgage means any Mortgage granted to secure any loan made pursuant to either a mortgage
commitment obtained by Developer from a commercial lender or other financial institution to fund any
portion of the construction costs and initial operating capital requirements of the Minimum Improvements
or all such Mortgages as appropriate.
Full-Time Equivalent Job means the employment of one natural person:
1. For 8 hours per day for a 5-day, 40-hour workweek for 52 weeks per year, including paid
holidays, vacations and other paid leave; or
2. The number of hours or days per week, including paid holidays, vacations and other paid leave,
currently established by schedule, custom, or otherwise, as constituting a week of full-time
work for the kind of service an individual performs for an employing unit, provided that the
number of hours per week is at least 32 hours per week for 52 weeks per year including paid
holidays, vacations, and other paid leave.
Minimum Improvements means the Office Building to be constructed on the Development
Property and the Public Improvements, as more particularly described in Exhibit B.
Mortgage means any mortgage or security agreement in which Developer has granted a mortgage
or other security interest in the Development Property, or any portion or parcel thereof, or any
improvements constructed thereon.
Net Proceeds means any proceeds paid by an insurer to Developer under a policy or policies of
insurance required to be provided and maintained by Developer, pursuant to Article V of this Agreement
and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the
collection of such proceeds.
Office Building means a new 60,000 square foot medical office building to be constructed on the
Development Property.
Ordinance means the ordinance(s) of the City under which the taxes levied on taxable property in
the Development Property shall be divided and a portion paid into the Waukee Consolidated Urban
Renewal Tax Increment Revenue Fund under the authority of Iowa Code Section 403.19.
Project means the construction of the Minimum Improvements on the Development Property and
the retention and creation of Full-Time Equivalent Jobs in operations on the Development Property as set
forth in this Agreement.
Public Improvements means the construction of roadway on or adjacent to the Development
Property, as more particularly described in Exhibit B to this Agreement, to be constructed by Developer
and dedicated to the City upon completion.
Public Improvements Development Property means that portion of the Development Property
designated as Parcels 21-121 and 21-122 and as more specifically described in Exhibit A. At such time
as the Public Improvements Development Property is conveyed to the City of Waukee, any references to
the Development Property in this Agreement shall exclude the Public Improvements Development
Property.
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State means the State of Iowa.
Tax Increments means the property tax revenues on the Development Property and Office Building
divided and made available to the City for deposit in TIC Properties, LLC TIF Account of the Waukee
Consolidated Urban Renewal Tax Increment Revenue Fund under the provisions of Section 403.19 of the
Code, as amended, and the Ordinance.
Termination Date means the date of termination of this Agreement, as established in Section 11.8
of this Agreement.
TIC Properties, LLC TIF Account means a separate account within the Waukee Consolidated
Urban Renewal Tax Increment Revenue Fund of the City, in which there shall be deposited Tax
Increments received by the City with respect to the Development Property and Office Building.
Unavoidable Delays means delays resulting from acts or occurrences outside the reasonable
control of the party claiming the delay including but not limited to storms, floods, fires, explosions or
other casualty losses, unusual weather conditions, strikes, boycotts, lo ckouts or other labor disputes,
delays in transportation or delivery of material or equipment, litigation commenced by third parties, or the
acts of any federal, State, or local governmental unit (other than the City, with respect to a City -claimed
delay).
Urban Renewal Plan means the Urban Renewal Plan, as may be amended from time to time, and
approved with respect to the Waukee Consolidated Urban Renewal Area, described in the preambles
hereof.
Urban Renewal Area means the area known as the Waukee Consolidated Urban Renewal Area.
Waukee Consolidated Urban Renewal Tax Increment Revenue Fund means the special fund of the
City created under the authority of Section 403.19(2) of the Code and the Ordinance, which fund was
created in order to pay the principal of and interest on loans, monies advanced to, or indebtedness, whether
funded, refunded, assumed, or otherwise, including bonds or other obligations issued under the authority
of Chapters 15A, 403, or 384 of the Code, incurred by the City to finance or refinance in whole or in part
projects undertaken pursuant to the Unified Urban Renewal Plan for the Urban Renewal Area.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the City. The City makes the following
representations and warranties:
a. The City is a municipal corporation and municipality organized under the provisions of the
Constitution and the laws of the State and has the power to enter into this Agreement and carry out its
obligations hereunder.
b. The execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement
are not prevented by, limited by, in conflict with, or result in a breach of, the terms, conditions, or
provisions of any contractual restriction, evidence of indebtedness, agreement, or instrument of whatever
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nature to which the City is now a party or by which it is bound, nor do they constitute a default under any
of the foregoing.
c. All covenants, stipulations, promises, agreements, and obligations of the City contained
herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of the City
only, and not of any governing body member, officer, agent, servant, or employee of the City in the
individual capacity thereof.
Section 2.2. Representations and Warranties of Developer. Developer makes the following
representations and warranties:
a. TIC Properties, LLC is an Iowa limited liability company, duly organized and validly
existing under the laws of the State of Iowa and duly registered and authorized to do business in the State
of Iowa, and has all requisite power and authority to own and operate its properties, to carry on its business
as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations
under this Agreement.
b. This Agreement has been duly and validly authorized, executed, and delivered by
Developer and, assuming due authorization, execution, and delivery by the City, is in full force and effect
and is a valid and legally binding instrument of Developer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization, or other laws relating to or affecting
creditors’ rights generally.
c. The execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement
are not prevented by, limited by, in conflict with, or result in a violation or breach of any contractual
restriction, evidence of indebtedness, agreement, or instrument of whatever nature to which Developer is
now a party or by which it or its property is bound, nor do they constitute a default under any of the
foregoing.
d. There are no actions, suits, or proceedings pending or threatened against or affecting
Developer in any court or before any arbitrator or before or by any governmental body in which there is a
reasonable possibility of an adverse decision which could materially adversely affect the business (present
or prospective), financial position, or results of operations of Developer or which in any manner raises
any questions affecting the validity of the Agreement or Developer’s ability to perform its obligations
under this Agreement.
e. Developer shall cause the Minimum Improvements to be constructed in accordance with
the terms of this Agreement, the Urban Renewal Plan, and all local, State, and federal laws and regulations.
f. Developer will use its best efforts to obtain or cause to be obtained, in a timely manner, all
required permits, licenses, and approvals, and will meet, in a timely manner, all requirements of all
applicable local, State, and federal laws and regulations which must be obtained or met before the
Minimum Improvements may be lawfully constructed.
g. The construction of the Minimum Improvements will require a total investment of
approximately $14,668,467 for construction costs.
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h. Developer has not received any notice from any local, State, or federal official that the
activities of Developer with respect to the Development Property may or will be in violation of any
environmental law or regulation (other than those notices, if any, of which the City has previously been
notified in writing). Developer is not currently aware of any State or federal claim filed or planned to be
filed by any party relating to any violation of any local, State, or federal environmental law, regulation, or
review procedure applicable to the Development Property, and Developer is not currently aware of any
violation of any local, State, or federal environmental law, regulation, or review procedure which would
give any person a valid claim under any State or federal environmental statute with respect thereto.
i. Developer has firm commitments for construction or acquisition and permanent financing
in an amount sufficient, together with equity commitments, to successfully complete the Minimum
Improvements in accordance with the terms of this Agreement.
j. Developer will cooperate fully with the City in resolution of any traffic, parking, trash
removal, or public safety problems which may arise in connection with the construction of the Minimum
Improvements and operation of its business on the Development Property.
k. Subject to Unavoidable Delays, the Developer will complete construction of the Public
Improvements by May 31, 2024 and the Office Building by July 31, 2024.
l. Developer would not undertake its obligations under this Agreement without the payment
by the City of the Economic Development Grants being made to Developer pursuant to this Agreement.
m. Developer will not seek to change the current land assessment category, or the zoning
classification, of the Development Property or the Office Building during the term of this Agreement.
n. Following construction of the Minimum Improvements, Developer will operate its
business on the Development Property until at least the Termination Date of this Agreement.
ARTICLE III. CONSTRUCTION
Section 3.1. Construction of Minimum Improvements; Construction Plans.
a. Developer agrees that it will cause the Minimum Improvements to be constructed on the
Development Property in accordance with the terms of this Agreement and in conformance with the
Construction Plans submitted to the City in accordance with Section 3.1(b). Developer agrees that the
scope and scale of the Minimum Improvements to be constructed shall not be significantly less than the
scope and scale of the Minimum Improvements as outlined in this Agreement and as set forth in the
Construction Plans, and shall require a total investment of approximately $14,668,467 for construction
costs.
b. All work with respect to the Minimum Improvements shall be in conformity with the
Construction Plans approved by the building official or any amendments thereto as may be approved by
the building official. Developer agrees that it shall permit designated representatives of the City, upon
reasonable notice (which does not have to be written), to enter upon the Development Property during the
construction of the Minimum Improvements to inspect such construction and the progress thereof.
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Section 3.2. Commencement and Completion of Construction. Subject to Unavoidable Delays,
Developer shall cause construction of the Minimum Improvements to be undertaken and completed: (i)
by no later than May 31, 2024 for the Public Improvements and July 31, 2024 for the Office Building; or
(ii) by such other dates as the parties shall mutually agree upon in writing. Time lost as a result of
Unavoidable Delays shall be added to extend this date by a number of days equal to the number of days
lost as a result of Unavoidable Delays.
Section 3.3. Certificate of Completion. Upon written request of Developer after completion of
the Minimum Improvements, the City will inspect the Minimum Improvements and, if the Minimum
Improvements have been completed in accordance with this Agreement, then the City will furnish
Developer with a Certificate of Completion in recordable form, in substantially the form set forth in
Exhibit D attached hereto. Such Certificate of Completion shall be a conclusive determination of
satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations
of Developer to cause construction of the Minimum Improvements.
The Certificate of Completion may be recorded in the proper office for the recordation of deeds
and other instruments pertaining to the Development Property at Developer’s sole expense. If the City
shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section
3.3, the City shall, within twenty (20) days after written request by Developer provide a written statement
indicating in adequate detail in what respects Developer has failed to complete the Minimum
Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the
terms of this Agreement, and what measures or acts it will be necessary, in the opinion of the City, for
Developer to take or perform in order to obtain such Certificate of Completion.
Issuance by the City of the Certificate of Completion pursuant to this Section 3.3 is solely for the
purposes of this Agreement and shall not constitute approval for any other City purpose nor shall it subject
the City to any liability for the Development Property or the Minimum Improvements as constructed.
Section 3.4. Dedication of Public Improvements. Upon notice of completion of the Public
Improvements, the City shall inspect the Public Improvements and determine whether they have been
completed in accordance with this Agreement. If the City finds that the Public Improvements have been
duly completed in compliance with this Agreement and all City ordinances, policies, and procedures, the
bonds required by Section 3.6 have been provided, and the City approves the Public Improvements, the
Developer shall dedicate (and give notice to Lolowau to dedicate, as provided in the Public Street
Declaration) the Public Improvements and the Public Improvements Development Property to the City
and the City shall accept said dedication, at no cost to the City. If the City determines that the Public
Improvements are not acceptable, it shall notify the Developer in the same manner as refusal to provide a
Certificate of Completion as described in Section 3.3.
Section 3.5. No Special Legal Entitlements to Public Improvements. Developer recognizes and
agrees that upon dedication to the City the Public Improvements shall be owned and maintained by the
City and that nothing in this Agreement grants Developer any special legal entitlements or other rights not
held by members of the general public with respect to ownership, maintenance, or use of the Public
Improvements. The Parties agree that the City and other Indemnified Parties are not responsible for and
will have no liability to Developer associated with the specifications, design, plans, quality of
construction, or sufficiency of the Public Improvements for any particular purpose.
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Section 3.6. Bonding Requirements. Developer shall obtain, or require each of its general
contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement for, in
the aggregate, the anticipated full value of the completed Public Improvements and that further guarantee
the prompt payment of all materials and labor. The performance bond(s) for a given Project of the Public
Improvements shall remain in effect until construction of such Public Improvements is completed, at
which time a four-year maintenance bond shall be substituted for each performance bond. The bonds shall
clearly specify the Developer and City as joint obligees. The Developer shall also comply with all City
requirements for the construction of the Public Improvements.
ARTICLE IV. PROPERTY TAXES
Section 4.1. Real Property Taxes. Developer, or its successors, shall pay or cause to be paid,
when due, all real property taxes and assessments payable with respect to all and any parts of the
Development Property and Office Building. Until Developer’s obligations have been assumed by any
other person or legal title to the property is vested in another person, all pursuant to the provisions of this
Agreement, Developer shall be solely responsible for all assessments and taxes on the Developm ent
Property.
Developer, and its permitted successors and assigns, agree that prior to the Termination Date:
a. They will not seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property contained on the Development
Property determined by any tax official to be applicable to the Development Property or Office Building,
or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings,
including delinquent tax proceedings; and
b. They will not seek any tax exemption, deferral, or abatement either presently or
prospectively authorized under any State, federal, or local law with respect to taxation of real property
contained on the Development Property between the date of execution of this Agreement and the
Termination Date.
Nothing in this Section 4.1 shall prohibit Developer from appealing the County Assessor’s valuation of
the Development Property during the term of the Agreement.
ARTICLE V. INSURANCE
Section 5.1. Insurance Requirements.
a. Developer will provide and maintain or cause to be maintained at all times during the
process of constructing the Minimum Improvements (and, from time to time at the request of the City,
furnish the City with proof of payment of premiums on):
i. Builder’s risk insurance, written on the so-called “Builder’s Risk–Completed Value
Basis,” in an amount equal to one hundred percent (100%) of the insurable value of the Minimum
Improvements at the date of completion, and with coverage available in non-reporting form on the so-
called “all risk” form of policy.
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ii. Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations, and contractual liability insurance) with
limits against bodily injury and property damage of at least $1,000,000 for each occurrence. The City
shall be named as an additional insured for the City’s liability or loss arising out of or in any way associated
with the project and arising out of any act, error, or omission of Developer, its directors, officers,
shareholders, contractors, and subcontractors or anyone else for whose acts the City may be held
responsible (with coverage to the City at least as broad as that which is provided to Developer and not
lessened or avoided by endorsement). The policy shall contain a “severability of interests” clause and
provide primary insurance over any other insurance maintained by the City.
iii. Workers’ compensation insurance with at least statutory coverage.
b. Upon completion of construction of the Office Building and at all times prior to the
Termination Date, Developer shall maintain or cause to be maintained, at its cost and expense (and from
time to time at the request of the City shall furnish proof of the payment of premiums on), insurance as
follows:
i. Insurance against loss and/or damage to the Office Building under a policy of
policies covering such risks as are ordinarily insured against by similar businesses, including (without
limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief,
explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full
insurable replacement value of the Office Building, but any such policy may have a deductible amount of
not more than $50,000 or self-insurance up to but not more than $1,000,000. No policy of insurance shall
be so written that the proceeds thereof will produce less than the minimum coverage required by the
preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto
in writing by the City. The term “full insurable replacement value” shall mean the actual replacement cost
of the Office Building (excluding foundation and excavation costs and costs of underground flues, pipes,
drains, and other uninsurable items) and equipment, and shall be determined from time to time at the
request of the City, but not more frequently than once every three (3) years, by an insurance consultant or
insurer selected and paid for by Developer and approved by the City.
ii. Comprehensive general public liability insurance, including personal injury
liability for injuries to persons and/or property, including any injuries resulting from the operation of
automobiles or other motorized vehicles on or about the Development Property, in the minimum amount
of each occurrence and for each year of $1,000,000.
iii. Such other insurance, including workers’ compensation insurance respecting all
employees of Developer on the Development Property, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that Developer
may be self-insured with respect to all or any part of its liability for workers’ compensation.
c. All insurance required by this Article V to be provided prior to the Termination Date shall
be taken out and maintained in responsible insurance companies selected by Developer which is
authorized under the laws of the State to assume the risks covered thereby. Developer will deposit annually
with the City copies of policies evidencing all such insurance, or a certificate or certificates or binders of
the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this
Article V, each policy shall contain a provision that the insurer shall not cancel or modify it without giving
written notice to Developer and the City at least thirty (30) days before the cancellation or modification
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becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, Developer shall
furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another
policy conforming to the provisions of this Article V, or that there is no necessity therefor under the terms
hereof. In lieu of separate policies, Developer may maintain a single policy, or blanket or umbrella
policies, or a combination thereof, which provide the total coverage required herein, in which event
Developer shall deposit with the City a certificate or certificates of the respective insurers as to the amount
of coverage in force upon the Office Building.
d. Developer agrees to notify the City immediately in the case of damage exceeding $100,000
in amount to, or destruction of, the Office Building or any portion thereof resulting from fire or other
casualty. Net Proceeds of any such insurance shall be paid directly to Developer will forthwith repair,
reconstruct, and restore the Office Building to substantially the same or an improved condition or value
as they existed prior to the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction, and restoration, Developer will apply the Net Proceeds to any insurance relating to
such damage received by Developer to the payment or reimbursement of the costs thereof.
e. Developer shall complete the repair, reconstruction, and restoration of the Office Building,
whether or not the Net Proceeds of insurance received by Developer for such purposes are sufficient.
ARTICLE VI. FURTHER COVENANTS OF DEVELOPER
Section 6.1. Maintenance of Properties. Developer will maintain, preserve, and keep its
properties within the City (whether owned in fee or a leasehold interest), including but not limited to the
Development Property and Office Building, in good repair and working order, ordinary wear and tear
excepted, and from time to time will make all necessary repairs, replacements, renewals, and additions.
Section 6.2. Maintenance of Records. Developer will keep at all times proper books of record
and account in which full, true, and correct entries will be made of all dealings and transactions of or in
relation to its business and affairs relating to this Project in accordance with generally accepted accounting
principles, consistently applied throughout the period involved, and will provide reasonable protection
against loss or damage to such books of record and account.
Section 6.3. Compliance with Laws. Developer will comply with all State, federal, and local
laws, rules, and regulations relating to the Development Property, Minimum Improvements, and the
Project.
Section 6.4. Non-Discrimination. In the construction and operation of the Minimum
Improvements, Developer shall not discriminate against any applicant, employee, or customer because of
age, color, creed, national origin, race, religion, marital status, sex, physical disability, or familial status.
Developer shall ensure that applicants, employees, and customers are considered and are treated without
regard to their age, color, creed, national origin, race, religion, marital status, sex, physical disability, or
familial status.
Section 6.5. Available Information. Upon request, Developer shall promptly provide the City
with copies of information requested by City that are related to this Agreement or the Project so that City
can determine compliance with this Agreement.
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Section 6.6. Employment Obligations. Following completion of the Minimum Improvements,
but by no later than December 31, 2025, Developer shall cause at least 30 Full-Time Equivalent Jobs to
be created and maintained in the operations on the Development Property. From December 31, 2025 until
at least the Termination Date of this Agreement, the Developer shall cause (i) continuous operation of the
medical clinic business on the Development Property; and (ii) employment of a Monthly Average of at
least 30 Full-Time Equivalent Jobs in the operations on the Development Property.
For the purposes of this Agreement, “Monthly Average” means the average number of Full-Time
Equivalent Jobs employed in the operations on the Development Property as of October 1 of each year
and as of the first day of each of the preceding eleven (11) months, as shown in the Annual Certification
submitted pursuant to Section 6.7. Developer shall provide information as requested by the City to
determine compliance with the foregoing employment obligations. For purposes of this Agreement,
should the existing clinic in Waukee owned by or affiliated with Developer close, jobs relocated from that
location to the Development Property shall not count toward the 30 jobs required to be created under this
Agreement.
Section 6.7. Developer Annual Certification. To assist the City in monitoring this Agreement
and the performance of Developer hereunder, a duly authorized officer of Developer shall annually
provide to the City: (i) proof that all ad valorem taxes on the Development Property and Office Building
have been timely paid for the prior fiscal year (and for the current year, if due); (ii) the date of the first
full assessment after completion of the Office Building; (iii) the total number of Full-Time Equivalent
Jobs employed in the operations at the Office Building as of each October 1 and the first day of each of
the preceding eleven (11) months (9 months for the first certification); and (iv) certification that such
officer has re-examined the terms and provisions of this Agreement and that at the date of such certificate,
and during the preceding twelve (12) months, Developer is not, or was not, in default in the fulfillment of
any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the
lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is aware of any such
default, event or Event of Default, said officer shall disclose in such statement the nature thereof, its period
of existence and what action, if any, has been taken or is proposed to be taken with respect thereto. Such
statement, proof and certificate shall be provided not later than October 15 of each year, commencing
October 15, 2026 and ending on October 15, 2033, both dates inclusive. Developer shall provide
supporting information for the Annual Certifications upon request of the City. See Exhibit E for form
required for the Annual Certification.
Section 6.8. Developer’s Certification of Approved Costs. Developer shall certify to the City
(the “Developer Certification”) the amount of all Approved Costs submitted for reimbursement as
Economic Development Grants to be paid to the Developer and shall certify that such amounts are true
and correct. See Exhibit F for the form of Developer Certification. Such Developer Certification shall be
provided not later than October 15, 2024. Along with its Developer Certification, Developer shall attach
documentation showing substantiation of Approved Costs as provided in Section 8.1(a)(iv) of this
Agreement. Developer shall provide additional supporting information for its Developer Certification
upon request of the City. The City reserves the right to reject any submitted costs which do not qualify as
Approved Costs or are not sufficiently substantiated.
Section 6.9. Term of Operation. Developer shall cause operations to be maintained at the Office
Building on the Development Property, including the employee obligations in Section 6.6, until the
Termination Date of this Agreement.
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Section 6.10. Developer Completion Guarantee. By signing this Agreement, Developer hereby
guarantees to the City performance by Developer of all the terms and provisions of this Agreement
pertaining to Developer’s obligations with respect to the construction of the Minimum Improvements.
Without limiting the generality of the foregoing, Developer guarantees that: (a) construction of the
Minimum Improvements shall commence and be completed within the time limits set forth herein; (b)
the Minimum Improvements shall be constructed and completed in accordance with the terms of this
Agreement and the Construction Plans; (c) the Minimum Improvements shall be constructed and
completed free and clear of any mechanic’s liens, materialman’s liens and equitable liens; and (d) all costs
of constructing the Minimum Improvements shall be paid when due.
ARTICLE VII. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
Section 7.1. Status of Developer; Transfer of Substantially All Assets; Assignment.
a. As security for the obligations of Developer under this Agreement, Developer represents
and agrees that, prior to the Termination Date, Developer will maintain existence as a company and will
not wind up or otherwise dispose of all or substantially all of its assets or transfer, convey, or assign its
interest in the Development Property, Office Building, or this Agreement to any other party unless: (i)
the transferee partnership, corporation, limited liability company, or individual assumes in writing all of
the obligations of Developer under this Agreement; and (ii) the City consents thereto in writing in advance
thereof, which consent shall be given or withheld in the sole discretion of the City.
b. In the event that Developer wishes to assign this Agreement, Developer, and the transferee
individual or entity shall request that the City consent to an amendment or assignment of this Agreement
to accommodate the transfer and to provide for the assumption of all Developer’s obligations, as
applicable, under this Agreement. Such transfer shall not be effective unless and until the City consents
in writing to an amendment or assignment of this Agreement authorizing the transfer, which consent shall
be given or withheld in the sole discretion of the City.
c. Notwithstanding the foregoing, upon completion of the Minimum Improvements,
Developer may lease the Development Property and Office Building to a subsidiary, affiliate, successor,
or entity otherwise related to the Developer for the purpose of the Office Building being operated as a
medical clinic without the City’s consent.
Section 7.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property. During
the term of this Agreement, the Developer, and its successors or assigns, agree that, except for the Public
Improvements Development Property, the Development Property cannot be transferred or sold to a non-
profit entity or used for a purpose that would exempt the Development Property or Office Building from
property tax liability. Nor can the Development Property or Office Building be used as centrally assessed
property (including but not limited to, Iowa Code § 428.24 to 428.29 (Public Utility Plants and Related
Personal Property); Chapter 433 (Telegraph and Telephone Company Property); Chapt er 434 (Railway
Property); Chapter 437 (Electric Transmission Lines); Chapter 437A (Property Used in the Production,
Generation, Transmission or Delivery of Electricity or Natural Gas); and Chapter 438 (Pipeline Property)).
ARTICLE VIII. ECONOMIC DEVELOPMENT GRANTS
Section 8.1. Economic Development Grants.
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a. Payment of Economic Development Grants. For and in consideration of the obligations
being assumed by Developer hereunder, and in furtherance of the goals and objectives the Urban Renewal
Plan for the Urban Renewal Area and the Urban Renewal Act, the City agrees, subject to the Developer
being and remaining in compliance with this Agreement at the time of each payment, and subject to the
terms and conditions of this Article VIII, to make up to eight (8) consecutive annual payments of
Economic Development Grants to the Developer under the following terms and conditions.
i. Schedule of Grants. Assuming completion of the Office Building in July 2024 and
first full assessment of the Office Building on January 1, 2025, timely certification of the Approved Costs
by Developer, and the City’s debt certification to the County Auditor prior to December 1, 2025, the
Economic Development Grants shall commence on June 1, 2027, and end on June 1, 2034, pursuant to
Section 403.19 of the Urban Renewal Act under the following formula and schedule:
June 1, 2027 80% of Tax Increments for Fiscal Year 26-27
June 1, 2028 80% of Tax Increments for Fiscal Year 27-28
June 1, 2029 80% of Tax Increments for Fiscal Year 28-29
June 1, 2030 80% of Tax Increments for Fiscal Year 29-30
June 1, 2031 80% of Tax Increments for Fiscal Year 30-31
June 1, 2032 80% of Tax Increments for Fiscal Year 31-32
June 1, 2033 80% of Tax Increments for Fiscal Year 32-33
June 1, 2034 80% of Tax Increments for Fiscal Year 33-34
ii. Maximum Amount of Grants. The aggregate amount of the Economic
Development Grants that may be paid to the Developer under Section 8.1(a) of this Agreement shall be
equal to the sum of the total amount of the applicable percentages of Tax Increments collected in respect
of the assessments imposed on the Development Property and Office Building, but in no event shall the
aggregate amount of the Economic Development Grants exceed the lesser of: (a) $1,668,467, or (b) the
aggregate amount of the Approved Costs submitted to and approved by the City (consistent with the terms
of Section 6.8). It is further agreed and understood that in no event shall Developer be entitled to receive
more than calculated under the formula set forth in this Section 8.1(a), even if the aggregate amount is
less than maximum amount stated herein or the amount of Approved Costs paid by the Developer.
iii. Limitations. City and Developer acknowledge that each Economic Development
Grant payment to be paid to Developer according to this Section 8.1(a) is wholly contingent upon the
actual Approved Costs paid by Developer, and payment shall come solely and only from incremental taxes
received by the City under Iowa Code Section 403.19 from levies upon the Development Property and
Office Building. The City makes no assurance that the Developer will receive Economic Development
Grants which equal the amount of the Approved Costs paid by Developer.
iv. Certification of Approved Costs. The obligation of the City to make any Economic
Development Grants to the Developer shall be subject to and conditioned upon, among other things, the
timely filing by the Developer of the Developer Certification required under Section 6.8 hereof and the
City’s approval thereof. Developer must submit accurate and sufficient do cumentation of the Approved
Costs to the City as part of its Developer Certification.
b. Calculation of Grants. Each annual payment shall be equal in amount to the incremental
property tax revenues attributable to Development Property that are received by the City from the Dallas
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County Treasurer and that are equal to the above percentages of the Tax Increments collected by the City
with respect to the Development Property and Office Building under the terms of the Ordinance and
deposited into TIC Properties, LLC TIF Account (without regard to any averaging that may otherwise be
utilized under Section 403.19 and excluding any interest that may accrue thereon prior to payment to
Developer) during the preceding twelve-month period in respect of the Development Property, but subject
to limitation and adjustment as provided in this Article (such payments being referred to collectively as
the “Economic Development Grants”).
Section 8.2. Conditions Precedent. Notwithstanding the provisions of Section 8.1 above, the
obligation of the City to make an Economic Development Grant in any year shall be subject to and
conditioned upon the following:
a. Developer’s compliance with the terms of this Agreement at the time of payment; and
b. Developer’s construction of the Minimum Improvements consistent with the terms of this
Agreement; and
c. Dedication of the Public Improvements and Public Improvements Development Property
to the City consistent with Section 3.4; and
d. Developer’s timely filing of the Annual Certifications, as set forth in Section 6.7; and
e. Developer’s timely filing of the Developer Certification as set forth in Sections 6.8 and
8.1(a)(iv).
Under no circumstances shall the failure by Developer to qualify for an Economic Development
Grant in any year serve to extend the term of this Agreement beyond the Termination Date or the years
during which Economic Development Grants may be awarded to Developer or the total amount thereof,
it being the intent of parties hereto to provide Developer with an opportunity to receive Economic
Development Grants only if Developer fully complies with the provisions hereof and the Developer
becomes entitled thereto, up to the maximum aggregate amounts set forth in Section 8.1(a)(ii).
After the Office Building is first fully assessed and if in compliance with this Agreement, if the
Developer’s Annual Certification is timely filed under Section 6.7 and the Developer Certification is
timely filed under Section 6.8, the City shall certify to Dallas County, Iowa (the “County”) prior to
December 1 of that year its request for the available Tax Increments resulting from the assessments
imposed by the County as of January 1 of that year, to be collected by the County and paid to the City as
taxes are paid during the following fiscal year and a percentage of which shall thereafter be disbursed to
Developer on the following June 1 provided Developer is in compliance with this Agreement at the time
of payment. (Example: Assuming completion of the Office Building in 2024 and first full assessment on
January 1, 2025, if Developer timely certifies the amount of Approved Costs, and the City certifies to the
County by December 1, 2025, the first Economic Development Grant would be paid to Developer on June
1, 2027 (for 80% of the Tax Increment for Fiscal Year 2026-2027)). Compliance with the terms and
conditions of this Agreement at the time of payment is a condition precedent to receiving an Economic
Development Grant.
Section 8.3. Source of Grant Funds Limited.
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a. The Economic Development Grants shall be payable from and secured solely and only by
amounts of incremental property tax revenues attributable to the Development Property and Office
Building that are received by the City from the Dallas County Treasurer and that are deposited and held
in TIC Properties, LLC TIF Account of the Waukee Consolidated Urban Renewal Tax Increment Revenue
Fund of the City. The City hereby covenants and agrees to maintain the Ordinance covering the
Development Property in force during the term hereof and to apply the appropriate percentage of Tax
Increments collected in respect of the Development Property and Office Building, and allocated to TIC
Properties, LLC TIF Account, to pay the Economic Development Grants, as and to the extent set forth in
this Article. The Economic Development Grants shall not be payable in any manner by other tax
increment revenues or by general taxation or from any other City funds. Any commercial and industrial
property tax replacement monies that may be received under Chapter 441.21A of the Code shall not be
included in the calculation to determine the amount of Economic Development Grants for which
Developer is eligible, and any monies received back under Chapter 426C of the Code relating to the
Business Property Tax Credit shall not be included in the calculation to determine the amount of Economic
Development Grants for which Developer is eligible.
b. Each Economic Development Grant is subject to annual appropriation by the City Council
of the City. The right of non-appropriation reserved to the City in this Section is intended by the parties,
and shall be construed at all times, so as to ensure that the City’s obligation to make future Economic
Development Grants shall not constitute a legal indebtedness of the City within the meaning of any
applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates
funds for the payment of that installment or amount. In the event that any of the provisions of this
Agreement are determined by a court of competent jurisdiction to create, or result in the creation of, such
a legal indebtedness of the City, the enforcement of the said provision shall be suspended, and the
Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing
intent of the parties, and no Event of Default by the City shall be deemed to hav e occurred as a result
thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended,
the suspension shall not affect other provisions of this Agreement which can be given effect without the
suspended provision. To this end the provisions of this Agreement are severable.
c. Notwithstanding the provisions of Section 8.1 hereof, the City shall have no obligation to
make an Economic Development Grant to Developer if at any time during the term hereof the City fails
to appropriate funds for payment; the City receives an opinion from its legal counsel to the effect that the
use of Tax Increments resulting from the Office Building to fund an Economic Development Grant to
Developer, as contemplated under said Section 8.1, is not authorized or is not an otherwise appropriate
urban renewal activity permitted to be undertaken by the City under the Urban Renewal Act or other
applicable provisions of the Code, as then constituted or under controlling decision of any Iowa court
having jurisdiction over the subject matter hereof; or the City’s ability to collect Tax Increment from the
Office Building and Development Property is precluded or terminated by legislative changes to Iowa Code
Chapter 403. Upon occurrence of any of the foregoing circumstances, the City shall promptly forward
notice of the same to Developer. If the circumstances continue for a period during which two (2) annual
Economic Development Grants would otherwise have been paid to Developer under the terms of Section
8.1, the City may terminate this Agreement, without penalty or other liability to the City, by written notice
to Developer.
Section 8.4. Use of Other Tax Increments. The City shall be free to use any and all Tax Increments
above and beyond the percentages to be given to Developer in this Agreement, or any available Tax
Increments resulting from the suspension or termination of the Economic Development Grants, for any
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purpose for which the Tax Increments may lawfully be used pursuant to the provisions of the Urban
Renewal Act (including an allocation of all or any portion thereof to the reduction of any eligible City
costs), and the City shall have no obligations to Developer with respect to the use thereof.
ARTICLE IX. INDEMNIFICATION
Section 9.1. Release and Indemnification Covenants.
a. Developer releases the City and the governing body members, officers, agents, servants,
and employees thereof (hereinafter, for purposes of this Article IX, the “Indemnified Parties”) from,
covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to indemnify, defend,
and hold harmless the Indemnified Parties against, any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Office Building or Development
Property.
b. Except for any willful misrepresentation or any willful or wanton misconduct, gross
negligence, or any unlawful act of the Indemnified Parties, Developer agrees to protect and defend the
Indemnified Parties, now or forever, and further agrees to hold the Indemnified Parties harmless from any
claim, demand, suit, action, or other proceedings whatsoever by any person or entity whatsoever arising
or purportedly arising from: (i) any violation of any agreement or condition of this Agreement (except
with respect to any suit, action, demand, or other proceeding brought by Developer against the City to
enforce its rights under this Agreement); (ii) the acquisition and condition of the Development Property
and the construction, installation, ownership, and operation of the Office Building; or (iii) any hazardous
substance or environmental contamination located in or on the Development Property.
c. The Indemnified Parties shall not be liable for any damage or injury to the persons or
property of Developer, or its officers, agents, servants, or employees or any other person who may be
about the Minimum Improvements or Development Property due to any act of negligence of any person,
other than any act of negligence on the part of any such Indemnified Party or its officers, agents, servants,
or employees.
d. All covenants, stipulations, promises, agreements, and obligations of the City contained
herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of the
City, and not of any governing body member, officer, agent, servant, or employee of the City in the
individual capacity thereof.
e. The provisions of this Article IX shall survive the termination of this Agreement.
ARTICLE X. REMEDIES
Section 10.1. Events of Default Defined. The following shall be “Events of Default” under this
Agreement and the term “Event of Default” shall mean, whenever it is used in this Agreement, any one or
more of the following events during the term of this Agreement:
a. Failure by Developer to cause the Minimum Improvements to be constructed pursuant to
the terms and conditions of this Agreement;
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b. Transfer of any of Developer’s interests in the Development Property, Office Building, or
this Agreement or the assets of Developer in violation of the provisions of this Agreement;
c. Failure by Developer to timely pay ad valorem taxes on the Development Property and
Office Building;
d. Failure by Developer to substantially observe or perform any covenant, condition,
obligation, or agreement on its part to be observed or performed under this Agreement;
e. The holder of any Mortgage on the Development Property, or any improvements thereon,
or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable
Mortgage documents;
f. Developer:
i. files any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy
Act of 1978, as amended, or under any similar federal or state law; or
ii. makes an assignment for the benefit of its creditors; or
iii. admits in writing its inability to pay its debts generally as they become due; or
iv. is adjudicated as bankrupt or insolvent; or if a petition or answer proposing the
adjudication of Developer as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer
shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or
liquidator of Developer or the Office Building, or part thereof, shall be appointed in any proceedings
brought against Developer and shall not be discharged within ninety (90) days after such appointment, or
if Developer shall consent to or acquiesce in such appointment; or
g. Any representation or warranty made by Developer in this Agreement or in any written
statement or certificate furnished by Developer pursuant to this Agreement, shall prove to have been
incorrect, incomplete, or misleading in any material respect on or as of the date of the issuance or making
thereof.
Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section 10.1
of this Agreement occurs and is continuing, the City may take any one or more of the following actions
after giving thirty (30) days’ written notice to Developer, and the holder of the First Mortgage (but only
to the extent the City has been informed in writing of the existence of a First Mortgage and been provided
with the address of the holder thereof) of the Event of Default, but only if the Event of Default has not
been cured to the satisfaction of the City within said thirty (30) days, or if the Event of Default cannot
reasonably be cured within thirty (30) days and Developer do not provide assurances reasonably
satisfactory to the City that the Event of Default will be cured as soon as reasonably possible:
a. The City may suspend its performance under this Agreement until it receives assurances
from Developer, deemed adequate by the City, that Developer will cure the default and continue
performance under this Agreement;
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b. The City may terminate this Agreement;
c. The City may withhold the Certificate of Completion;
d. The City may take any action, including legal, equitable, or administrative action, which
may appear necessary or desirable to enforce performance and observance of any obligation, agreement,
or covenant of Developer under this Agreement; or
e. The City shall have no obligation to pay any Economic Development Grants to Developer
subsequent to an Event of Default, and the City shall be entitled to recover from Developer, and Developer
shall repay to the City, an amount equal to the full amount of the Economic Development Grant s
previously paid to Developer, with interest thereon at the highest rate permitted by State law. The City
may take any action, including any legal action it deems necessary, to recover such amount from
Developer.
Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City
is intended to be exclusive of any other available remedy or remedies, but each and every remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing
upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be deemed expedient.
Section 10.4. No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other concurrent, previous or
subsequent breach hereunder.
Section 10.5. Agreement to Pay Attorneys’ Fees and Expenses. Whenever any Event of Default
occurs and the City employs attorneys or incurs other expenses for the collection of payments due or to
become due or for the enforcement or performance or observance of any obligation or agreement on the
part of Developer herein contained, Developer agrees that it shall, on demand therefor, pay to the City the
reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately incurred
by the City in connection therewith.
ARTICLE XI. MISCELLANEOUS
Section 11.1. Conflict of Interest. Developer represents and warrants that, to the best of its
knowledge and belief after due inquiry, no officer or employee of the City, or its designees or agents, nor
any consultant or member of the governing body of the City, and no other public official of the City who
exercises or has exercised any functions or responsibilities with respect to the Project during his or her
tenure, or who is in a position to participate in a decision-making process or gain insider information with
regard to the Project, has had or shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work or services to be performed in connection with the Project, or in any
activity, or benefit therefrom, which is part of the Project at any time during or after such person’s tenure.
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Section 11.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by registered
or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a. In the case of Developer, is addressed or delivered personally to TIC Properties, LLC at
5950 University Avenue Suite 321, West Des Moines, 50266, Attn: Ben Vallier, CEO;
b. In the case of the City, is addressed to or delivered personally to the City at City of Waukee
at Waukee City Hall, 230 W. Hickman Road, Waukee, Iowa 50263, Attn: City Clerk;
or to such other designated individual or officer or to such other address as any party shall have furnished
to the other in writing in accordance herewith.
Section 11.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections
of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or
interpreting any of its provisions.
Section 11.4. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
Section 11.5. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Iowa.
Section 11.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement among the parties regarding the subject matter hereof, and supersedes and replaces all prior
agreements, negotiations or discussions, whether oral or written. This Agreement may not be amended
except by a subsequent writing signed by all parties hereto.
Section 11.7. Successors and Assigns. This Agreement is intended to and shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted successors and assigns.
Section 11.8. Termination Date. This Agreement shall terminate and be of no further force or
effect on and after the later of: (a) the five year anniversary date of the completion of the Minimum
Improvements or (b) the date Developer has received from City the last Economic Development Grant
under the terms of Article VIII, unless terminated earlier under the provisions of this Agreement.
Section 11.9. Memorandum of Agreement. The parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit C, to
serve as notice to the public of the existence and provisions of this Agreement, and the rights and interests
held by the City by virtue hereof. The City shall pay for all costs of recording.
Section 11.10. No Third-Party Beneficiaries. No rights or privileges of either party hereto shall
inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any other person or
entity, and no such contractor, landowner, subcontractor, material supplier, or any other person or entity
shall be deemed to be a third-party beneficiary of any of the provisions contained in this Agreement.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name
and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk, and
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Developer has caused this Agreement to be duly executed in its name and behalf by its authorized
representative, all on or as of the day first above written.
[Remainder of page intentionally left blank; Signature pages follow]
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(SEAL) CITY OF WAUKEE, IOWA
By: ___________________________
Courtney Clarke, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20___, before me a Notary Public in and
for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee,
Iowa, a Municipality created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipality, and that said instrument was signed and sealed
on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily
executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Agreement for Private Development – City of Waukee]
A-1
Execution Version
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is legally described as follows:
Parcel 21-120 as shown in Plat of Survey filed January 6, 2022 in Book 2022, Page
363 in Government Lot 15 in Section 4, Township 78 North, Range 26 West of the
5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of Survey filed
January 6, 2022 in Book 2022, Page 363 and corrected in Plat of Survey filed
January 27, 2022, in Book 2022, Page 2048 of the Dallas County Recorder's Office.
Parcel 21-121 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 364 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2049 of the Dallas County
Recorder's Office.
Parcel 21-122 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 365 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2050 of the Dallas County
Recorder's Office.
B-1
Execution Version
EXHIBIT B
MINIMUM IMPROVEMENTS
Minimum Improvements means the construction of the Office Building on the
Development Property, as well as the construction of the Public Improvements. The construction
of the Public Improvements will be completed by May 31, 2024 and the Office Building will be
completed by July 31, 2024. Construction costs are expected to be approximately $13,000,000 for
the Office Building and $1,668,467 for the Public Improvements.
Office Building means a new 60,000 square foot commercial building to be used as a
medical center on the Development Property, and all related site improvements. The Office
Building’s use as a medical center will allow for the retention and hiring of employees. The Dallas
County Assessor will make the final determination as to the assessed value of the Office Building.
Public Improvements means the design and construction of an estimated 575 ft of road and
60 ft of ROW, running east to west, along the north side of the Development Property, which
improvements are anticipated to be dedicated to the City as public infrastructure.
See Exhibit B-1 for preliminary diagrams of the Minimum Improvements.
B-2
Execution Version
EXHIBIT B-1
DIAGRAMS OF MINIMUM IMPROVEMENTS
C-1
Execution Version
Prepared by: Nathan J. Overberg, Ahlers & Cooney, 100 Court Ave. #600, Des Moines, IA 50309, 515 -243-7611
Return to: Becky Schuett, City Clerk, Waukee City Hall, 230 W. Hickman Road, Waukee, IA 50263
EXHIBIT C
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (“City”) and TIC Properties, LLC (“Developer”)
did on or about the _____ day of _______________, 20___, make, execute and deliver, each to
the other, an Agreement for Private Development (the “Agreement”), wherein and whereby
Developer agreed, in accordance with the terms of the Agreement and the Waukee Consolidated
Urban Renewal Plan (“Plan”), as amended, to develop certain real property located within the City
and within the Waukee Consolidated Urban Renewal Area, legally described as follows:
Parcel 21-120 as shown in Plat of Survey filed January 6, 2022 in Book 2022, Page
363 in Government Lot 15 in Section 4, Township 78 North, Range 26 West of the
5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of Survey filed
January 6, 2022 in Book 2022, Page 363 and corrected in Plat of Survey filed
January 27, 2022, in Book 2022, Page 2048 of the Dallas County Recorder's Office.
Parcel 21-121 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 364 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2049 of the Dallas County
Recorder's Office.
Parcel 21-122 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 365 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2050 of the Dallas County
Recorder's Office.
(the “Development Property”); and
C-2
Execution Version
WHEREAS, the term of the Agreement commenced on the ____ day of _______________,
20___ and terminates on December 31, 2031, unless otherwise terminated as set forth in the
Agreement; and
WHEREAS, the City and Developer desire to record a Memorandum of the Agreement
referring to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. That the recording of this Memorandum of Agreement for Private Development
shall serve as notice to the public that the Agreement contains provisions restricting development
and use of the Development Property and the improvements located and operated on such
Development Property.
2. That all of the provisions of the Agreement and any subsequent amendments
thereto, if any, even though not set forth herein, are by the filing of this Memorandum of
Agreement for Private Development made a part hereof by reference, and that anyone making any
claim against any of said Development Property in any manner whatsoever shall be fully advised
as to all of the terms and conditions of the Agreement, and any amendments thereto, as if the same
were fully set forth herein.
3. That a copy of the Agreement and any subsequent amendments thereto, if any, shall
be maintained on file for public inspection during ordinary business hours in the office of the City
Clerk, Waukee, Iowa.
IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of
Agreement for Private Development on the ______ day of ___________________, 20____.
[Remainder of page intentionally left blank; signature pages follow]
C-3
Execution Version
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
Courtney Clarke, Mayor
ATTEST:
By: ____________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20___, before me a Notary Public
in and for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality created and existing under the laws of the State of Iowa,
and that the seal affixed to the foregoing instrument is the seal of said Municipality, and that said
instrument was signed and sealed on behalf of said Municipality by authority and resolution of its
City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and
deed of said Municipality by it voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Memorandum of Agreement for Private Development – City of Waukee]
D-1
Execution Version
EXHIBIT D
CERTIFICATE OF COMPLETION
WHEREAS, the City of Waukee, Iowa, (“City”) and TIC Properties, LLC, an Iowa limited
liability company (“Developer”) did on or about the _____ day of _______________, 20___,
make, execute and deliver, each to the other, an Agreement for Private Development (the
“Agreement”), wherein and whereby Developer agreed, in accordance with the terms of the
Agreement, to develop and maintain certain real property located within the City and as more
particularly described as follows:
Parcel 21-120 as shown in Plat of Survey filed January 6, 2022 in Book 2022, Page
363 in Government Lot 15 in Section 4, Township 78 North, Range 26 West of the
5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of Survey filed
January 6, 2022 in Book 2022, Page 363 and corrected in Plat of Survey filed
January 27, 2022, in Book 2022, Page 2048 of the Dallas County Recorder's Office.
Parcel 21-121 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 364 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2049 of the Dallas County
Recorder's Office.
Parcel 21-122 in Government Lot 15 in Section 4, Township 78 North, Range 26
West of the 5th P.M., City of Waukee, Dallas County, Iowa. as shown in Plat of
Survey filed January 6, 2022 in Book 2022, Page 365 and corrected in Plat of
Survey filed January 27, 2022, in Book 2022, Page 2050 of the Dallas County
Recorder's Office.
(the “Development Property”); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated the Developer to
construct certain Minimum Improvements (as defined therein) in accordance with the Agreement;
and
WHEREAS, Developer has to the present date performed said covenants and conditions
insofar as they relate to the construction of said Minimum Improvements in a manner deemed by
the City to be in conformance with the Agreement to permit the execution and recording of this
certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement
with respect to the obligations of Developer, and its successors and assigns, to construct the
Minimum Improvements on the Development Property have been completed and performed by
Developer and are hereby released absolutely and forever terminated insofar as they apply to the
land described herein. The County Recorder of Dallas County is hereby authorized to accept for
recording and to record the filing of this instrument, to be a conclusive determination of the
D-2
Execution Version
satisfactory termination of the covenants and conditions of said Agreement with respect to the
construction of the Minimum Improvements on the Development Property.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Remainder of page intentionally left blank; signature pages follow]
D-3
Execution Version
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
Mayor
ATTEST:
By: ____________________________
City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20_____, before me a Notary
Public in and for said State, personally appeared _____________________and
_____________________, to me personally known, who being duly sworn, did say that they are
the Mayor and City Clerk, respectively, of the City of Waukee, Iowa, a Municipality created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument
is the seal of said Municipality, and that said instrument was signed and sealed on behalf of said
Municipality by authority and resolution of its City Council, and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily
executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Certificate of Completion – City of Waukee]
E-1
Execution Version
EXHIBIT E
ANNUAL CERTIFICATION
(due before October 15th as required under terms of Development Agreement)
Developer certifies that, during the time period covered by this Certification, Developer is and was in compliance
with Section 6.7 of the Agreement as follows:
(i) All ad valorem taxes on the Development Property and Minimum Improvements have been timely
paid for the prior fiscal year (and for the current year, if due) and attached to this Annual Certification are proof of
payment of said taxes;
(ii) The Minimum Improvements were first fully assessed on January 1, 20___, at a full assessment
value of $_____________, and are currently assessed at $______________________;
(iii) The total number of Full-Time Equivalent Jobs employed in the operations in the Minimum
Improvements as of October 1, _____ and as of the first day of each of the preceding eleven (11) months were are
follows:
October 1, 20__: ______ April 1, 20__: _________
September 1, 20__: _________ March 1, 20__: _________
August 1, 20__: _________ February 1, 20___: ________
July 1, 20__: _________ January 1, 20__: _______
June 1, 20__: _________ December 1, 20__: _______
May1, 20__: __________ November 1, 20__: _______
(iv) The undersigned officer of Developer has re-examined the terms and provisions of the Agreement
and certifies that at the date of such certificate, and during the preceding twelve (12) months, the Developer is not,
or was not, in default in the fulfillment of any of the terms and conditions of the Agreement and that no Event of
Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default)
is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any
such default, event or Event of Default, said officer shall disclose in such statement the nature ther eof, its period of
existence and what action, if any, has been taken or is proposed to be taken with respect thereto.
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and
correct to the best of my knowledge and belief.
Signed this _________ day of _____________________, 20___.
TIC PROPERTIES, LLC,
an Iowa limited liability company
By: ______________________________
Name: ____________________________
Its: _______________________________
Attachments: Proof of payment of taxes
F-1
Execution Version
EXHIBIT F
DEVELOPER CERTIFICATION OF APPROVED COSTS
TIC Properties, LLC (the “Developer”) certifies that the expenses shown on the table below
were/are the actual expenses incurred by the Developer for the Approved Costs defined in an
Agreement for Private Development entered into the _____ day of __________, 20__ between
the City of Waukee, Iowa and the Developer (the “Agreement”).
Certified Costs of Public Improvements
Project
Cost
Category
Engineering,
Plans,
Specifications
Construction
Costs
Legal
Costs
Drainage,
Landscaping,
Grading
Cost for
acquisition
of land
within the
ROW
Interest
during
construction
and for not
more than
six months
thereafter
Miscellaneous
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Total Cost
per
category
If you need additional space please attach another table.
Attach actual receipts and invoices
[Remainder of this page intentionally left blank. Signature page to follow.]
F-2
Execution Version
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding
is true and correct to the best of my knowledge and belief.
TIC PROPERTIES, LLC,
an Iowa limited liability company
By: ______________________________
Name: ____________________________
Its: _______________________________
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 20____, before me the undersigned, a Notary
Public in and for said State, personally appeared _____________________, to me personally
known, who, being by me duly sworn, did say that s/he is the ____________of TIC Properties,
LLC, and that said instrument was signed on behalf of said limited liability company; and that the
said _____________________as such officer, acknowledged the execution of said instrument to
be the voluntary act and deed of said limited liability company, by her/him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Developer Certification of Costs]
01952974-1\21938-269